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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, March 13, 2015

Murder convict wins Habeas appeal in Second Circuit

The Court of Appeals has granted a Habeas Corpus petition filed by a man who was found guilty in 1993 for killing his former girlfriend, ruling that his attorney did not effectively represent him at trial.

The case is Rivas v. Fischer, decided on March 11. When the victim died, the medical examiner said the time of death was between Saturday, March 28, 1987 and Sunday, March 29, 1987. But when the case went to trial in 1992, the examiner said the victim died on Friday night, March 27, 1987, when Rivas lacked an alibi. Rivas had a better alibi for the original Saturday-Sunday time-of-death theory. The jury convicted Rivas of murder, and into the slammer he went.

Post-conviction motion practice argued that the medical examiner changed his time-of-death theory to curry favor with the District Attorney in order to avoid prosecution for the examiner's criminal conduct. Rivas also argued that the examiner's testing to determine the time-of-death of unreliable and bogus. He also hired an expert, Dr. Cyril Wecht, who said the examiner had miscalculated the time-of-death and that the victim had in fact died on Saturday-Sunday, not Friday night, again, when Rivas had no alibi.

The Northern District of New York denied the Habeas petition, but the Court of Appeals (Cabranes, Sack and Pooler) reverse and grant the petition, freeing Rivas unless the DA decides to prosecute him again (after Rivas spent more than 2 decades in jail). Rivas wins the appeal because his lawyer did a bad job at trial. Emphasizing at trial that the medical examiner had originally said the victim died on Friday night, counsel relied on an alibi defense for a time period that did not cover Rivas's tracks for Saturday-Sunday, the operative time period at trial. Counsel also ignored newspaper articles and other information sources that suggested the examiner had changed his time-of-death estimate without the benefit of new evidence. Investigating this changed timeline would have greatly assisted Rivas at trial. And, in not hiring an expert like Wecht to counter the "disgraced" medical examiner's estimate about when the victim died, counsel did not give the jury a reason to believe the victim had died on Friday night, when Rivas had an alibi.

The Court of Appeals concludes that if the state does not take concrete and substantial steps to retry Rivas within 60 days, the district court has to grant the Habeas petition.